Decision Date: 07/31/95 Archive Date:
08/03/95
DOCKET NO. 93-02 677 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in No. Little
Rock, Arkansas
THE ISSUES
1. Whether new and material evidence has been submitted to
reopen a claim for entitlement to service connection for an
acquired psychiatric disorder, to include schizophrenia.
2. Whether new and material evidence has been submitted to
reopen a claim for entitlement to service connection for a
stomach condition.
3. Entitlement to a compensable rating for pes planus.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Christine E. Puffer, Associate Counsel
INTRODUCTION
The veteran had active service from December 1978 to
November 1979.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from June, July and August 1993 rating
decisions of the Department of Veterans Affairs (VA)
Wichita, Kansas, Regional Office (RO).
In an April 1994 informal hearing presentation, the
veteran's representative noted several issues that had not
been previously raised. He contended that an April 1982
Board decision contained clear and unmistakable error with
respect to the denial of service connection for epididymitis
(addressed in the decision as hydrocele) and a stomach
condition. While the representative referenced such error
in an August 1981 rating decision denying service connection
for pseudofolliculitis barbae, the Board notes that the
April 1982 Board decision also addressed this issue and,
therefore, incorporated the rating decision. The United
States Court of Veterans Appeals (Court) has determined that
review of final Board decisions cannot be conducted on the
basis of clear and unmistakable error. See Smith (William
A.) v. Brown, 35 F.3d 1516 (Fed. Cir. 1994). As such,
further action with respect to these issues is not
warranted.
REMAND
While the RO has phrased two of the issues on appeal, with
respect to an acquired psychiatric disorder and a stomach
condition, as involving entitlement to service connection,
an April 1982 Board decision is of record denying service
connection for a nervous disorder and a stomach disorder.
This decision is final, and new and material evidence is
required in order to reopen the noted claims. 38 U.S.C.A.
§§ 5108, 7103(a) (West 1991); 38 C.F.R. §§ 3.156(a), 20.1100
(1994). As such, the Board has rephrased the issues on
appeal to reflect this. In this regard, the Board notes
that the RO has provided the veteran with an outdated
citation in the Statement of the Case with respect to new
and material evidence. A Supplemental Statement of the Case
should be issued, reflecting current laws and regulations
pertaining to the issue of new and material evidence. 38
U.S.C.A. § 7105(d)(1)(B) (West 1991).
At the time of his hearing in May 1995, the veteran reported
receiving treatment for psychiatric and stomach complaints
at various VA facilities shortly after his separation from
service in November 1979. No records reflecting the averred
treatment are on file, and no effort has been expended to
obtain the same. The veteran maintains, in essence, that
his service-connected pes planus has worsened in severity.
He reports that he received treatment for this condition in
April or May 1994 at a VA Medical Center (VAMC). No effort
has been made to obtain the records of this treatment. The
VA's statutory duty to assist includes the duty to obtain
pertinent medical records, especially those specifically
noted by a claimant. See Leap v. Derwinski, 2 Vet.App. 404,
405 (1992).
The veteran last underwent a VA examination in November
1980. Where, as here, the medical evidence of record is
insufficient the Board is free to supplement the record by
ordering a medical examination. Colvin v. Derwinski, 1
Vet.App. 171, 175 (1991). In light of the veteran's
contentions of increasing severity of symptomatology and the
extensive lapse of time since his last VA examination, the
Board finds that a current VA examination is warranted.
As the Board finds that additional development of the
evidence is necessary, this case is REMANDED to the RO for
the following action:
1. The RO should obtain all available treatment records of
the veteran, both outpatient and hospitalization, from the
following facilities:
a. The Los Angeles outpatient clinic and/or Brentwood VAMC.
In particular, the RO is requested to obtain records
evidencing psychiatric treatment accorded the veteran from
December 1979 and/or January 1980.
b. The Louisville VAMC. In particular, the RO is requested
to obtain records documenting treatment of the veteran for
psychiatric problems during January 1980, and for
gastrointestinal complaints during March 1980.
c. The Nashville VAMC. In particular, the RO is requested
to obtain records of treatment of the veteran for
psychiatric complaints between 1980 and 1981.
d. The Shreveport VAMC. In particular, the RO is requested
to obtain records of podiatry treatment afforded the veteran
during April or May 1994.
All records obtained should be associated with the claims
file; however, the RO should take care that duplicate
records are not placed in the file.
2. After the above-requested development has been
completed, the veteran should be afforded a podiatry
examination for the purpose of evaluating the manifestations
and severity of any podiatry condition(s) that may be
present. Any and all tests deemed necessary by the examiner
should be performed. The veteran's claims file must be made
available to the examiner for review in conjunction with
this examination. The rationale for all opinions expressed
should be set forth.
3. When the development requested in the above paragraphs
has been completed, the case should again be reviewed on the
basis of the additional evidence. Unless the veteran is
satisfied with any favorable action and withdraws his
appeal, a supplemental statement of the case should be
furnished the appellant and his representative, to include
citation to 38 U.S.C.A. §§ 5108, 7103(a) (West 1991); 38
C.F.R. §§ 3.156(a), 20.1100 (1994). They should then be
afforded the appropriate period of time to respond.
Thereafter, the case should be returned to the Board for
further consideration.
The purpose of this REMAND is to assist the veteran in the
development of his claim, and the Board does not intimate
any opinion as to the merits of this case, either favorable
or unfavorable, at this time. No action is required of the
veteran until he is notified.
WARREN W. RICE, JR.
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740,
___ (1994), permits a proceeding instituted before the Board
to be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United
States Court of Veterans Appeals. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal. 38
C.F.R. § 20.1100(b) (1994).
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